"The Forced Heirship System is a Law That Encourages Unfilial Children"… Issues Revealed in the Constitutional Court's Public Hearing

Petitioner Emphasizes Era Changes, Points Out Unconstitutionality of Current Law
Ministry of Justice: "Legislative Decision to Maintain Family Bonds and Alleviate Conflicts"
Significant Impact Expected if Simple Unconstitutionality or Constitutional Incompatibility Ruling Issued

On the 17th, a heated debate took place at the Constitutional Court over whether the statutory reserved portion system under the Civil Act, which guarantees a minimum inheritance share to heirs such as children and spouses, is unconstitutional.

The petitioners who filed the constitutional complaint argued that the current reserved portion system is a "law that fosters unfilial children" and a "law that causes disputes," and claimed that it should now be abolished in line with changing times.

On the other hand, the Ministry of Justice acknowledged the need for some modifications and improvements to the system but insisted that institutional improvements should be made carefully through sufficient social discussion. In particular, since the system should still be maintained for now, they emphasized that problems should be addressed through legislative amendments rather than a declaration of unconstitutionality by the Constitutional Court.

The scene of the public hearing for the constitutional complaint case related to the statutory share system held on the afternoon of the 17th at the Grand Bench of the Constitutional Court in Jongno-gu, Seoul.
[Photo by Constitutional Court]

The public hearing on that day proceeded in order with representatives (lawyers) of the petitioners in the two consolidated constitutional complaints concerning the unconstitutionality of the reserved portion system, prosecutors from the Ministry of Justice who appeared as interested parties, and civil law experts (law school professors) who appeared as witnesses for both sides presenting their opinions one by one.

Especially, after each presenter finished their opinion, the constitutional justices asked questions, revealing most of the key issues of the case during this process.

Petitioners: "Law fostering unfilial children, law causing disputes"... "Violates the principle of proportionality, thus unconstitutional"

First to speak on behalf of the petitioners, Attorney Kang In-cheol from Law Firm Lin argued, "The current reserved portion system violates the Constitution by exceeding the legislative limits on restricting fundamental rights set forth in Article 37, Paragraph 2 of the Constitution."

Article 37, Paragraph 2 of the Constitution stipulates that even if fundamental rights are restricted by law, their essential content cannot be infringed. Specifically, laws that fail to meet ▲legitimacy of purpose ▲appropriateness of means ▲minimal infringement ▲balance of interests are evaluated as unconstitutional laws violating the principle of proportionality.

Attorney Kang said, "Regarding the purposes of the reserved portion system previously presented by the Constitutional Court ? ▲protecting the survival rights of bereaved family members ▲settling contributions to the formation of inherited property ▲guaranteeing expectations regarding inherited property, and the academic discussion of ▲preventing abuse of the testator's freedom of will ? it is questionable whether the survival rights of adult children should be protected in a situation where average life expectancy has extended and there are many adult children, and there is no basis to recognize posthumous support obligations against the explicit will of the testator."

He added, "Regarding the settlement of contributions to the formation of inherited property, the concept of family property (gasan) is no longer valid, and there is no need to guarantee inheritance expectations for heirs who have severed ties with the testator; rather, guaranteeing such expectations contradicts the public's sense of justice."

He also pointed out, "The testator's constitutional freedom to dispose of private property should take precedence over the heirs' inheritance rights, and only the testator's remaining property should be the inherited property; fundamentally, the reserved portion system contradicts the essence of the inheritance system."

When asked by a justice, "Can you tell us about the practical difficulties encountered while conducting reserved portion lawsuits?" Attorney Kang replied, "The reserved portion system is a law that fosters unfilial children. I apologize for using such an extreme expression."

He said, "I think the system actually causes disputes. In countries like the United States where there is no such system, I doubt disputes arise among children suddenly appearing after the parent's death to claim inheritance shares despite not having shown themselves during the parent's lifetime. Rather than alleviating disputes, the system encourages them."

The second petitioner presenter, Attorney Jeong Ho-young from Law Firm Logos, explained the problems of the system revealed in cases where the donee who received a gift during the testator's lifetime is a third party.

He pointed out the unconstitutionality of the proviso to Article 1114 of the Civil Act, which includes gifts made with the knowledge that both parties could harm the reserved portion right holders in the base property for calculating the reserved portion regardless of the market value at the time of the gift. He said, "By sequentially gifting over time and including only the last gifted property, the system can be nullified." This means that gifts made without knowledge that the rights of other heirs entitled to claim the reserved portion could be infringed can avoid the obligation to return the property.

Attorney Jeong said, "Since the provisions on reserved portions in the Civil Act have been in effect since January 1, 1979, all gifts made after the law's enforcement are subject to reserved portion return claims," adding, "Even gifts made 10, 20, or up to 40 years ago must be returned after the testator's death based on the commencement of inheritance."

Ministry of Justice: "Necessary to ease conflicts among bereaved families... Legislative decision needed"

Kim Young-min, a prosecutor from the Legal Affairs Office representing the Minister of Justice as an interested party, first explained the reserved portion lawsuit cases that triggered this constitutional complaint. The two cases are being heard together.

One case involves daughters claiming reserved portion returns against a daughter-in-law and two grandsons who received real estate gifts from their deceased mother during her lifetime, and the other involves children claiming reserved portion returns against a scholarship foundation to which the testator donated property during their lifetime.

Prosecutor Kim argued, "The reserved portion system introduced by the 1997 amendment to the Civil Act is a compromise between testamentary freedom and kinship inheritance rights," calling it "a legislative decision to leave a portion of the inheritance to the bereaved family."

He also emphasized, "The reserved portion system is necessary to maintain family bonds or ease conflicts among the testator and heirs," adding, "If the reserved portion system were abolished, conflicts over inheritance property could become much more extreme."

He further added, "It is the last resort to protect heirs without economic ability."

When asked by a justice whether any legislative improvements had been proposed to the National Assembly, Prosecutor Kim replied, "The Ministry of Justice submitted a bill to the National Assembly in 2021 to exclude siblings from reserved portion right holders, considering the increase in single-person households and weakened relationships among siblings."

He also added, "Regarding criticisms that the current reserved portion system is too rigid, such as protecting heirs who have not fulfilled any support obligations, the Ministry also submitted a bill to the National Assembly allowing courts to deprive inheritance rights upon claims by other heirs if the heir seriously violates support obligations or abuses the testator."

Petitioners' expert witness: "Problematic that contributions are not considered"... "Should change from in-kind return to monetary return"

Following the representatives of both sides, Professor Hyun So-hye from Sungkyunkwan University Law School, appearing as an expert witness for the petitioners, pointed out the unconstitutionality of Article 1118 of the Civil Act, which does not apply the provision on contributions (Article 1008-2) to reserved portions. She argued that it is problematic that the contributions of heirs who lived with and supported the testator are not considered at all in reserved portion return claims.

She said, "With the introduction of the contribution system in 1990, the function of settling the formation and maintenance of inherited property among co-heirs shifted from reserved portions to contributions," adding, "If only non-contributing heirs are forced to return reserved portions without guaranteeing fair settlement to contributing heirs, the incentive to contribute to the testator and family community disappears. Also, the testator's expectation to fairly compensate contributing heirs is inevitably frustrated."

She added, "If reserved portions become an obstacle to settling contributions, it will rather harm family solidarity."

When asked by a justice to explain the problem of the principle of "in-kind return" instead of "monetary return" in reserved portion returns with specific examples, Professor Hyun replied, "To keep it simple because calculations get complicated, a representative case is when the testator gifted real estate or stocks during their lifetime."

She explained, "It is common for a father to gift the house he lived in to his eldest son during his lifetime but continue living in the gifted house until his death, often hoping that his spouse will live there after his death. However, insisting on in-kind return means that when other co-heirs claim reserved portion returns, they must transfer their shares of the real estate. In this case, other co-heirs as co-owners may assert usufruct rights or sell their shares to third parties, making it impossible to realize the father's wish that his son care for his wife until her death."

She further explained, "In the case of gifted stocks, it may not be simple stocks but a declaration of succession intention for a specific company. Returning such stocks to other heirs significantly affects the exercise of management rights based on the stocks, excessively restricting the freedom to dispose of property."

Presentation (PPT) materials prepared by the presenter at the public hearing on the constitutional complaint trial regarding the statutory portion system held at the Constitutional Court on the afternoon of the 17th.
[Photo by Seokjin Choi]

Professor Hyun said, "The principle of in-kind return originated from French and Japanese law, but France already switched to monetary return in 2006, and Japan also switched to monetary return through the 2018 major amendment to inheritance law. Germany has had monetary return as the principle from the beginning."

Regarding the unconstitutionality of the current reserved portion system, she cited as representative cases ▲forcing the reserved portion system without allowing escape through private autonomy ▲irrationally discriminating between co-heirs and third parties when calculating reserved portions ▲completely ignoring contributing heirs in reserved portion calculations.

She also argued that the current law has no time limit on when gifts made by co-heirs become subject to reserved portion return claims and that the period should be limited to about "10 years before inheritance commencement."

When asked by a justice whether including gifts made by co-heirs regardless of timing in the base property for reserved portion calculation is a problem of the provision itself or merely the Supreme Court's interpretation, Professor Hyun replied, "There may be counterarguments, but I believe it is a problem of the legal provision itself, not just an interpretive issue."

She said, "Reserved portion calculations are very complicated, but the current Civil Act only has seven provisions on this, which is rare worldwide," adding, "Therefore, it is a situation that can only be resolved through interpretation, but if the Constitutional Court regards this as a Supreme Court interpretation issue, parties have no way to seek relief."

She continued, "The Constitutional Court has twice respected the judiciary's discretion, saying 'it can be resolved through the contribution system, so it is constitutional for now,'" but emphasized, "The Supreme Court's position has not changed, and now it is time to make an unconstitutional ruling."

Ministry of Justice's expert witness: "A system that has continued for decades... Should be resolved through legislative amendment"

Professor Seo Jong-hee from Yonsei University Law School, appearing as an expert witness for the interested party, rebutted, saying, "It is questionable whether the legislative purpose of the reserved portion system has been obliterated as the petitioners claim," and "It is a problem to be resolved through legislative amendment, not an unconstitutional evaluation."

Professor Seo said, "Of course, the absence of a pre-waiver system and the principle of in-kind return can be seen as shortcomings in legislative operation, but they can also be advantages," adding, "Although the term 'mutual harmful intent' meaning both parties knew the gift could harm the reserved portion right holders is ambiguous, this is an inevitable limitation that also occurs in other provisions with subjective requirements such as 'fraudulent acts' in creditor's revocation rights or 'gross negligence' in third-party protection provisions."

He added, "Considering that the reserved portion system itself has been operated for decades, although some problematic cases led to lawsuits, in countless cases where lawsuits did not occur, the reserved portion system functioned."

Following the presentations of the expert witnesses from both sides, the public hearing concluded with the final statements from both the petitioners and the interested parties.

The public hearing, which started at 2 p.m. that day, ended at 4:41 p.m. as justices continued to ask questions despite limiting the presentation time to 10 minutes for each representative and 15 minutes for each expert witness.

Yoo Nam-seok, Chief Justice of the Constitutional Court, said, "Our bench will make a judgment considering various circumstances shown in the records and arguments."

Legal circles: "Different outcome possible this time"... Simple unconstitutionality ruling could cause significant impact

In legal circles, there is speculation that the Constitutional Court, which previously made two rulings upholding the constitutionality of the reserved portion provisions in the Civil Act, is likely to reach a different conclusion this time.

There is a strong expectation that the Constitutional Court will consider the clear problems of the current system acknowledged even by the Ministry of Justice advocating for its maintenance, as well as the significant societal changes such as the markedly improved status of women compared to when the system was first introduced.

However, even if the Constitutional Court recognizes the unconstitutionality of the current reserved portion provisions in the Civil Act, it is uncertain whether it will abolish the system itself through a simple unconstitutionality ruling. The Constitutional Court's unconstitutionality rulings generally do not apply retroactively except in cases involving penal provisions and only have prospective effect. The confusion and impact expected if the reserved portion system, which has been maintained for over 40 years, suddenly disappears would be considerable.

The exterior view of the Constitutional Court in Jaedong, Jongno-gu, Seoul.
[Photo by Choi Seok-jin]

If the Constitutional Court issues a constitutional discordance decision that points out the unconstitutionality of some provisions while temporarily maintaining their effect until the National Assembly amends the law for legal stability, the petitioners who filed this constitutional complaint and parties currently undergoing reserved portion lawsuits are expected to have to return gifted property according to the current law.

Priority right to half to one-third of statutory inheritance share... Gifts made within one year before death subject to return

The reserved portion system guarantees a certain percentage of the statutory inheritance share to protect the survival rights of bereaved family members. Under the Civil Act, for first-priority heirs such as the testator's direct descendants (sons, daughters, grandchildren) and spouse, half of the statutory inheritance share is recognized as the reserved portion; for second-priority heirs such as direct ascendants (parents, grandparents) and third-priority heirs such as siblings, one-third of the statutory inheritance share is recognized.

The Civil Act limits the gifts subject to return to those made within one year before the commencement of inheritance, which are included in the base property for calculating the reserved portion. However, if both the testator and the donee knew that the gift could harm the reserved portion right holders (mutual harmful intent), all such gifts are subject to return without time limitation. There is no time limit for co-heirs.

Each heir can claim the return of gifts or legacies (gifts by will) received by other heirs or third parties if the actual inheritance amount received from the testator's estate is less than their reserved portion.

The reserved portion system became a social issue in 2019 when the late Goo Hara passed away. At that time, Goo's biological mother, who had run away about 20 years earlier, suddenly appeared and demanded her inheritance share, causing public outrage, but there was no legal way to block her exercise of rights. Eventually, Goo's mother inherited Goo's estate with Goo's brother at a ratio of 40:60. The so-called "Goo Hara Law," which would deprive or restrict inheritance rights in cases of gross neglect of support obligations, was discussed but automatically discarded in the 20th National Assembly and is still pending in the 21st National Assembly.

This content was produced with the assistance of AI translation services.